2012/06/05 Joseph W. Fletcher City attorney services LEGAL SERVICES AGREEMENT
THIS LEGAL SERVICES AGREEMENT(hereinafter"Agreement") is entered into this 5`h day of
June, 2012, between the Law Offices of Joseph W. Fletcher, a sole proprietorship(hereinafter
"Attorney") and the City of Menifee, a municipal corporation (hereinafter"City").
1. SCOPE OF SERVICES. City retains Attorney, as an independent contractor,to provide the
following services.
(a) City hereby appoints Attorney as City Attorney effective the date set forth above.
(b) As City Attorney, Attorney shall provide the following legal services which shall include,
but not necessarily be limited to, the following:
1.Routine legal advice, including telephone, email and personal consultations with members of
the City Council and City staff and rendering of formal legal advice and opinions, (both oral and
written) .
2. Review and/or preparation of staff reports,ordinances, resolutions, agreements,
contracts, forms, notices, certificates, deeds, leases and other documents required by
the City.
3. Attendance at all regular and special meetings of the City Council unless excused by the
Mayor. Attendance at meetings of Council-appointed advisory boards and commissions upon
request. Attorney may use other counsel pursuant to Section 6.
4. Coordination of legal services for the City Manager and subordinate departments of the City,
and attendance at meetings with staff as requested.
5. Legal work pertaining to property acquisitions, property disposals, public improvements,
easement dedications, and right-of-way abandonment.
6. Advice and counsel regarding enforcement of City codes, zoning regulations and building
standards through administrative actions. Judicial enforcement, criminal or civil, shall be
assigned to outside counsel separately retained by the City, but overseen by Attorney.
7. Representation of the City and its officers and employees in federal and state
litigation or other judicial or administrative proceedings through either contract counsel
authorized by Section 6 of this Agreement or outside counsel directly retained by the
City. City Council shall have the choice of utilizing contract counsel through Attorney at litigation
rates set forth in Exhibit No.1, or outside counsel.
8.The monitoring of pending and current state and federal legislation and court
decisions as appropriate.
9.The coordination of outside legal counsel as needed and as directed by the City
Council and City Manager.
10. Other duties and functions normally and customarily provided by a city attorney in
California.
2. THE ATTOREY-CLIENT RELATIONSHIP-RESPECITVE DUTIES. In carrying out the attorney-client
relationship created by this Agreement the Parties agree as follows:
(a) Attorney's acknowledges and agrees that the client is the City of Menifee, embodied by
the actions and decisions of the City Council acting as a whole.
(b) Attorney shall communicate evenly and fairly with all members of the City Council and
shall keep all members of the City Council informed of Attorney's advice and counsel given to its
members.
(c) Attorney shall provide City Council with periodic written updates of Attorney's work
product and priorities as well as legal developments affecting or of interest to City.
(d) City and its City Council members shall be truthful with Attorney, shall cooperate, and
keep Attorney informed of any information or developments which may come to City's attention
relevant to Attorney's representation of City.
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(e) City Council shall meet with Attorney each January to review Attorney's performance.
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3. LEGAL FEES AND BILLING PRACTICES. City agrees to pay Attorney for all services covered by this
Agreement in accordance with the terms of Exhibit No. 1, attached hereto and made a part hereof by
this reference (Exhibit No. 1). Time is charged in units of one tenth (. 1) of an hour. The time charged
for all time Attorney dedicates to services covered by this Agreement include time Attorney spends on
telephone calls relating to City's matter, including calls with City and other parties and attorneys.
Attorney will not charge for travel time, other than City-approved travel set forth below.
4. COSTS AND OTHER CHARGES. In general, Attorney will incur various costs and expenses in
performing legal services under this Agreement. Attorney agrees that only those costs as set forth in
Exhibit No 1 shall be reimbursable.
5. BILLING STATEMENTS. Attorney will send City periodic statements for fees and costs incurred.
City may request a statement at monthly intervals. The statements shall include the amount, rate, basis
of calculation or other method of determination of the fees and costs, which costs will be clearly
identified by item and amount. Each statement will be payable within 30 days of its mailing date.
6. ATTORNEYS ASSIGNED. Joseph W. Fletcher shall be City Attorney pursuant to this Agreement
and shall be the primary service provider. Attorney will subcontract with, or employ other attorneys to
provide services on an as-needed basis to meet the City's needs, if Mr. Fletcher is unavailable, or
otherwise, subject to the reasonable approval of the City Manager. Such approved attorneys may be
designated as Assistant City Attorney. Fees for such attorneys shall be as set forth in Attachment No. 1
and shall be payable to Attorney. Attorney shall be responsible for payments to such attorneys.
7. DISCHARGE AND WITHDRAWAL. City may discharge Attorney at any time. Attorney may
withdraw with City's consent or for good cause. Good cause includes City's breach of this Agreement,
refusal to cooperate or to follow Attorney's advice on a material matter or any fact or circumstance that
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would render Attorney's continuing representation unlawful or unethical. When Attorney's services
conclude, all unpaid charges will immediately become due and payable. After services conclude,
Attorney will, upon City's request, deliver City's file and property in Attorney's possession, whether or
not City has paid for all services.
8. DISCLAIMER OF GUARANTEE AND ESTIMATES. Nothing in this Agreement and nothing in
Attorney's statements to City will be construed as a promise or guarantee about the outcome of the
matter. Attorney makes no such promises or guarantees.Attorney's comments about the outcome of
the matter are expressions of opinion only. Any estimate of fees given by Attorney shall not be a
guarantee. Actual fees may vary from estimates given.
9. INSURANCE. Attorney shall maintain and shall require its subcontractors, if any,to obtain and
maintain insurance as described below:
(a) Commercial General Liability Insurance.Attorney shall maintain commercial general liability
insurance naming the City, its officers, employees, agents,volunteers and representatives as additional
insureds and shall include, but not be limited to protection against claims arising from bodily and
personal injury, including death resulting therefrom and damage to property, resulting from any act or
occurrence arising out of Attorney's operations in the performance of this Agreement, including,
without limitation, acts involving vehicles.The amounts of insurance shall be not less than the following:
single limit coverage applying to bodily and personal injury, including death resulting therefrom, and
property damage, in the total amount of$1,000,000.00 per occurrence,or such lesser amount as may
be approved by the City Manager. Attorney shall supply City with a fully executed additional insured
endorsement in a form acceptable to the Manager.
(b) Business automobile liability insurance, or equivalent form, with a combined single limit of
not less than $1,000,000.00 per occurrence, or such lesser amount as may be approved by the City
Manager.Such insurance shall include coverage for owned, hired and non-owned automobiles.
(c) Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the
Labor Code,Attorney, if Attorney has any employees, is required to be insured against liability for
worker's compensation or to undertake self-insurance.
(d) Professional liability (errors and omissions) insurance, with a combined single limit of not less
than $1,000,000.00 per claim.
(e)The following requirements apply to the insurance to be provided by Attorney pursuant to
this section:
1. Attorney shall maintain all insurance required above in full force and
effect for the entire period covered by this Agreement.
2. Certificates of insurance shall be furnished to the City.
3. Certificates and policies shall state that the policies shall not be
canceled or reduced in coverage or changed in any other material aspect
without thirty (30)days prior written notice to the City.
10. INDEMNIFICATION. Attorney agrees to and shall indemnify and hold harmless the City, its
officers, agents, employees, and representatives from liability: (1)for personal injury, damages,just
compensation, restitution,judicial or equitable relief arising out of claims for personal injury, including
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health, and claims for property damage, which may arise due to negligent acts, omissions or willful
misconduct in the performance, from the direct or indirect operations of the Attorney or his contractors,
subcontractors, agents, employees, or other persons acting on his behalf which relates to the services
described in Section 1 of this Agreement; and (2)from any claim that personal injury, damages,just
compensation, restitution,judicial or equitable relief is due by reason of the terms of or effects arising
from negligent acts,omissions or willful misconduct in the performance of this Agreement. Attorney
further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees
and costs for special counsel to be selected by the City, regarding any action by a third party asserting
that personal injury,damages,just compensation, restitution,judicial or equitable relief due to personal
or property rights arises by reason of effects arising from this Agreement. City may make all reasonable
decisions with respect to its representation in any legal proceeding.
11. INDEPENDENT CONTRACTOR. Attorney shall, during the entire term of this Agreement, be
construed to be an independent contractor and not an employee of the City.This Agreement is not
intended nor shall it be construed to create an employer-employee relationship, a joint venture
relationship, or to allow the City to exercise discretion or control over the professional manner in which
Attorney performs the services which are the subject matter of this Agreement, other than in its role as
client. Attorney shall pay all salaries and wages, employer's social security taxes, unemployment
insurance and similar taxes relating to employees and shall be responsible for all applicable withholding
' taxes.
12. NO PENSION BENEFITS. Attorney and City acknowledge and agree that: (1) the position of City
Attorney has never been a full or part time employee of the City; (2) the position of City Attorney has
never been covered by or been part of City's pension benefits agreement with California Public
Employees Retirement System CaIPERS • and 3 Attorney shall not be covered b or be art of Cit 's
Y ( I, ( ) Y Y P Y
pension benefits agreement CalPERS and as such Attorney cannot allege any pension benefits from the
work under this Agreement.
13. NO CONFLICTS OF INTEREST OR AFFILIATIONS. Attorney covenants that he presently has no
interests and shall not have interests, direct or indirect, which would conflict in any manner with
performance of services specified under this Agreement.
14. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties with regard
to the subject matter of this Agreement . No other agreement, statement, or promise made on or
before the effective date of this Agreement will be binding on the parties.
15. SEVERABILITY IN EVENT OF PARTIAL INVALIDITY. If any provision of this Agreement is held in
whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire
Agreement will be severable and remain in effect.
16. MODIFICATION BY SUBSEQUENT AGREEMENT. This Agreement may be modified by subsequent
agreement of the parties only by an instrument in writing signed by both of them or an oral agreement
only to the extent that the parties carry it out.
THE PARTIES HAVE READ AND UNDERSTOOD THE FOREGOING TERMS AND AGREE TO THEM AS
OF THE DATE ATTORNEY FIRST PROVIDED SERVICES. THE CITY SHALL RECEIVE A FULLY EXECUTED
DUPLICATE OF THIS AGREEMENT.
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CITY OF MENIF E L CES J SEP W. FLETCHER
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Jo h Denver . Fle c
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ATTEST:
Kathy Bennett
City Clerk
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Exhibit No. 1
Compensation
General Counsel Services $175.00 per hour.
General Counsel services shall include all legal services except criminal prosecution and civil litigation.
This shall include any, labor, redevelopment or housing matters.
Litigation Services $275.00 per hour.
Costs
Billable costs shall be limited to the foregoing:fees or charges paid on behalf of City including those
fixed by law or assessed by public agencies; messenger and other delivery fees(other than regular US
Mail);third-party extraordinary printing or reproduction costs; travel costs including parking, mileage,
(otherthan travel between Attorney's office and City Hall or other City Facility for scheduled meetings)
and City Manager-approved transportation, meals and hotel costs; and City-approved consultants'fees
and other similar items. All costs and expenses will be charged at Attorney's actual cost, with the
exception of mileage which will be billed at the prevailing IRS Standard Mileage Rates for business miles
driven.
(b) Special Travel. City agrees to pay transportation, meals, lodging and all other costs of
any necessary out-of-town travel by Attorney, approved in advance by the City Manager. City will also
be charged the hourly rates for the time Attorney spends travelling for such City Manager-approved
travel.
(c) Consultants. To aid in the representation in City's matter, it may become necessary to
hire consultants. They shall only be retained with City Manager's prior consent. City agrees to directly
pay such fees and charges.
(d) Litigation Costs-Litigation Services.
It is anticipated that the City will rely upon special counsel separately contracted by the City for criminal
and civil litigation. In such case, Attorney shall supervise such special counsel. However, in the event
Attorney, or an attorney contracted by Attorney pursuant to Section 6, appears in any civil litigation
under this Agreement, in addition to the hourly rate for litigation services set forth in Exhibit No. 1,the
City shall directly pay, or reimburse the firm,for all out of pocket costs related to threatened or pending
litigation including, but not limited to: document copying, preparation of transcripts, deposition
services, preparation of exhibits and demonstrative evidence, paralegal services, delivery, postage,
consultants and expert witnesses.
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